MICHAEL AZPEITIA v YUSEN_TERMINALS 2009LHC01905_(MAY_24_2012) ALJ Berlin

ALJ Berlin addresses: 

• discovery issues, especially admissions which had been entered based upon Claimant's failure to respond to demand for admission;
• TTD;
• whether Employer should purchase two jaccuzi's for Claimant's home and pay for future surgery;
• AWW and lien issues;
• Attorney's fees.

ISSUES

1. Should Claimant be permitted to withdraw his admissions that were deemed admitted
when he failed to timely answer Employer/Carrier’s requests for admission? Yes.
Coming after trial, Claimant’s request to withdraw the admissions was very late. But the
withdrawal promotes the presentation on the merits while not prejudicing Employer/
Carrier.
2. What is the nature and extent of Claimant’s disability? Claimant was temporary totally
disabled from April 6 through April 26, 2005. As of April 27, 2005, he recovered and
was able to return to his prior job without loss of wages. He sustained no permanent
disability.

3. Is Employer/Carrier required to pay for Claimant’s purchase of two hydrotherapy
(jaccuzi) units for his home and for future surgery? No. Claimant has a pre-existing
history of degenerative disk disease, and he fully recovered from the injury at issue here
in less than a month’s time. No future medical attention is needed for this injury.
Claimant purchased the jacuzzis without requesting authorization and after he had
recovered from the injury. Moreover, the very considerable expense of a home jaccuzi is
unreasonable to treat a short-term injury that was resolving rapidly without hydrotherapy.
4. What is the amount of compensation to which Claimant is entitled? Claimant is entitled
to temporary total disability compensation for the three weeks from April 6, 2005 through
April 26, 2005. Given his average weekly wage, his compensation rate is limited by the
statutory maximum. Employer/Carrier is entitled to a credit for compensation it paid
during these days. The amount Employer/Carrier owes Claimant calculates to $747.97,
plus interest. From this, Employer/Carrier must deduct the portion of Intervenor’s lien
attributable this time period.
5. Is Intervenor entitled to a lien against compensation? Yes, but the lien is limited to
indemnity benefits Intervenor provided during the time Claimant was disabled. This
comes to $419.65.
6. Is Claimant’s counsel entitled to an award of attorney’s fees? Possibly. Given the
amount of Claimant’s recovery and counsel’s mishandling of the responses to Employer/
Carrier’s requests for admission, any fees might be de minimis.

http://www.oalj.dol.gov/Decisions/ALJ/LHC/2009/AZPEITIA_MICHAEL_v_YUSEN_TERMINALS_2009LHC01905_(MAY_24_2012)_173712_CADEC_SD.PDF (ALJ Berlin)